FIRST DIVISION BARNES, P. J., BROWN and HODGES, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
June 29, 2022
In the Court of Appeals of Georgia A22A0254. OLIVER v. THE STATE.
BROWN, Judge.
Anthony Oliver, pro se, appeals from his convictions of aggravated stalking,
attempt to commit a felony (aggravated stalking), and making a false statement.
Oliver’s brief outlines 26 different alleged errors, some of which are duplicative and
will be considered together. In general, he asserts that insufficient evidence supports
his convictions and raises issues concerning the admission of evidence, a request for
a change of venue, ineffective assistance of trial counsel, and sentencing errors.
Based on the State’s failure to present sufficient evidence of venue for aggravated
stalking, we reverse that conviction. We find no merit in Oliver’s remaining contentions on appeal and affirm his attempt and making a false statement
convictions.1
On appeal from a criminal conviction, the standard for reviewing the
sufficiency of the evidence
is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.
(Citations and punctuation omitted.) Hayes v. State, 292 Ga. 506 (739 SE2d 313)
(2013). As outlined below, the State introduced evidence showing Oliver’s long
history of harassing and stalking the mother of his two children, who were born in
2004 and 2005, for over 15 years in multiple states. The events which resulted in
Oliver’s convictions took place on February 24, 2019, and early April 2019.
Oliver’s Past History with the Mother
1 We have circulated this decision among all nondisqualified judges of the Court to consider whether this case should be passed upon by all members of the Court. Fewer than the required number of judges, however, voted in favor of a hearing en banc on the question of disapproving Fincher v. State, 363 Ga. App. 439, 450-452 (6) (870 SE2d 833) (2022).
2 The mother testified that she met Oliver in California and their relationship was
good until she became pregnant with their daughter in 2004. He then became
physically abusive (pulling her hair and hitting and punching her) and mentally
abusive (degrading her, putting her down, and name calling). She attempted to leave
Oliver on more than one occasion and repeatedly tried to escape him, including by
moving to other states. She obtained her first protective order in California because
he was “coming [to her] workplace, calling nonstop, emailing, [and] getting in contact
with family members.” The mother acknowledged that she reconciled with Oliver
after obtaining the protective order because “he wouldn’t leave me alone and, to me,
it was just easier to go back. . . .”
The mother eventually “had enough and left him again.” Two months after she
moved to Tennessee from California, he appeared pounding at her door. When she
moved to Minnesota, he also came to her home, hit and choked her, and pulled her
hair. In 2007 and 2008, at a time when Oliver did not know the mother’s location, he
sent her numerous e-mails indicating that he would find her, asking her to give gifts
to the children, and threatening to make it hard for people with whom she was living
so that they would ask her to leave.
3 In 2008, the mother moved to Effingham County, Georgia and did not see
Oliver for many years. In February 2016, she received an e-mail from Oliver in which
he indicated that he knew her Georgia address and threatened to come to Georgia
once someone could take pictures and confirm her location. The mother contacted
police and told them that Oliver “told her he would do anything to see his children,
even kill her.” After a man came to the mother’s door, took pictures, and asked
questions, Oliver sent her an e-mail in March 2016, stating that he was leaving
Arizona and coming to see his children.
Three months later, the mother was checking out at a Walmart when Oliver
walked up to his daughter as she pulled a drink out of a cooler. The mother testified
that she was “in shock” and that her daughter “had this look on her face like she was
shocked, too.” When the mother and her daughter walked outside, Oliver followed
them to the car. He took a picture of himself with his daughter and told the mother
that she would “be sorry” if she did not allow him to see the kids. It is unclear from
the mother’s testimony whether the daughter heard this threat. After the encounter at
the Walmart, Oliver began calling the mother, her boyfriend, and other family
members from blocked numbers. He “was coming around all the time. . . . [H]e would
just show up and be there.”
4 The mother admitted that at one point after Oliver came to Georgia, she
allowed him to see the children because “[she] was scared not to” and hoped that
“things would calm down and be okay, and I wouldn’t have to deal with all this other
stuff that comes from me not letting him.” She also testified that the children wanted
to see him and she felt guilty because they did not know him.
The mother testified that after allowing Oliver to see the children, “things
start[ed] to kind of get bad again.” Oliver had “no boundaries. He was just showing
up whenever he wanted. If he couldn’t get the kids, he would just try to cause a bunch
of trouble. He was doing things in front of the kids or talking about things that he
shouldn’t in front of the kids. He wasn’t being a very good parent.” An exhibit
introduced into evidence by the State indicated that “the children expressed to [the
mother] that they were not comfortable . . . visiting . . . with Oliver anymore due to
his drinking and saying bad things about [the mother].” In September 2016, Oliver
told the mother “you’re dead” when she refused to allow him to see the children. On
October 4, 2016, Oliver filed a petition for legitimation of the children.
On June 15, 2017, the mother called the police because she believed that Oliver
had slashed the tires on her car. On June 29, 2017, Oliver made an allegation of child
abuse, resulting in a police officer coming to the mother’s home. The police officer
5 who responded to the call determined that Oliver’s allegation of injury to the child
was unfounded, but nonetheless notified DFCS as he was required to do based on the
nature of the allegation. At the time of his investigation, the mother complained that
Oliver had been talking to their son through a back fence and asked the officer to
issue a criminal trespass warrant banning him from the mother’s address. The officer
complied with her request.
In July 2017, Oliver appeared at a Walmart once again while the mother was
shopping with her daughter and approached them. When the mother asked how he
knew she was there, he laughed and said “stalker status.” The mother called the
police.
On August 14, 2017, the court presiding over the legitimation action entered
a consent restraining order precluding Oliver from approaching within 200 yards of
the mother, as well as all direct or indirect communication with her. On August 29,
2017, the court denied Oliver’s petition to legitimate.
In September 2017, Oliver threw a plastic bag containing a prepaid phone and
charger at their son when he was playing outside at a friend’s house and told the son
to call him. On September 26, 2017, Oliver filed a lawsuit against the mother and her
boyfriend asserting that they had breached a contract to purchase dogs to breed as a
6 money-making venture. He sought punitive damages in the amount of $2 million. The
trial court dismissed this action on March 21, 2018.
On October 2, 2017, the mother saw Oliver following her in his car while she
was driving the children home from school and notified the police. On October 13,
2017, Oliver called the police to assist him in collecting a cell phone from the mother.
The mother testified that she had already returned the phone to Oliver before he
called the police. The police officer testified that he spoke with the mother in
response to Oliver’s complaint and she was “visibly shaken[,] crying[, and] very
obviously scared.” The officer was aware that Oliver was barred from being around
the mother and concluded that Oliver “was just using law enforcement to harass her.”
On October 19, 2017, the mother sought a protective order based upon her fear of
Oliver and his continued harassment. On October 24, 2017, the Effingham County
Superior Court issued an ex parte temporary protective order.
On November 2, 2017, Oliver called the police and asked them to do a welfare
check on the children. The same officer who responded to Oliver’s October 13, 2017
request for assistance to retrieve his cell phone, spoke with the mother and described
her as “in worse shape this time. She was to the point of panic.” He contacted the
children’s school and verified that they “were fine.”
7 On December 18, 2017, Oliver filed a complaint against the mother, Governor
Nathan Deal, the Superior Court of Effingham County, the mother’s attorney in the
breach of contract case, an advocate who helped the mother with a restraining order,
six judges in various Effingham County courts, and Effingham County’s sheriff. He
asserted claims for intentional infliction of emotional distress, violations of 42 USC
§ 1983, and injunctive relief. He sought over $17 million in damages. On March 21,
2018, Oliver dismissed this case with the stated intention to refile in federal court,
and the State introduced evidence showing that he later filed a federal court action.
After that court imposed conditions upon Oliver’s continued use of its resources,
Oliver voluntarily dismissed the action. In addition to the lawsuits filed against the
mother, the State introduced other act evidence of suits filed by Oliver against third
parties in California and a federal court order declaring him to be a vexatious litigant
subject to pre-filing procedures.
On September 20, 2018, the Superior Court of Chatham County issued a
permanent family violence protective order prohibiting Oliver from having “any
contact, direct, indirect or through another person with [the mother]” and restraining
Oliver “from doing or attempting to do, or threatening to do, any act of injury,
maltreating, molesting, harassing, harming, or abusing the Petitioner’s family or
8 household[.]” The order does not identify the children by name. It included a notice
to Oliver that a violation of the order “may result in immediate arrest and criminal
prosecution. . . .”
Events Resulting in Oliver’s Convictions on Appeal
On February 24, 2019, the mother, a boyfriend, and her children were driving
to a wildlife refuge in South Carolina. As she was driving, she started receiving texts
and calls from her daughter’s best friend. One of the text messages stated, “I need to
talk to you.” The mother testified that she “couldn’t answer” and returned the call
when she pulled into the parking lot of the wildlife refuge.
At that time, her daughter’s friend “said that herself, her mother, and her
mother’s best friend were at [a restaurant] eating and . . . [Oliver] was [seated] behind
her. And [the mother’s friend] kept seeing this man staring [and] she didn’t know who
he was.” The daughter’s friend turned around, realized it was Oliver, and explained
who he was to her mother. Oliver continued staring at them as they continued to eat.
They hurried to finish eating and when they left, Oliver approached the daughter’s
friend and asked where his child was. After the friend stated, “With her mom,” Oliver
said, “Well, tell her that I have over $6,000 worth of Christmas presents sitting in my
apartment that I don’t know what to do with.”
9 The mother testified that this message made her “scared,” and she viewed it as
Oliver “letting us know that he’s around,” particularly if he had followed the friends
to the restaurant. Her fear was not caused by the content of the message regarding the
presents, but rather “the fact he was wanting that message, whatever message it was,
to be sent knowing that he don’t care. He’s going to do what he wants to do just —
obviously, to let us know that he’s around.” She testified that she is “always in fear,
because I don’t know what he is capable of doing.”
The friend who conveyed the message to the mother testified that she had met
Oliver only once in 2017, and that she was “creeped out” by Oliver’s conduct in
staring at her in the restaurant in February 2019. The friend’s mother testified that she
“told [her daughter] to tell [the mother] not [her daughter’s friend].” The friend stated
that she was located in Chatham County when she texted and attempted to call the
mother. The restaurant in which Oliver conveyed the message also is located in
Chatham County.
On April 2, 2019, Oliver was arrested for aggravated stalking. The officer
advised him that the probable cause listed in the warrant was that he violated a
protective order at 220 Pooler Parkway on February 27. At Oliver’s request, the
officer looked up the address and advised him that it was a Logan’s Steakhouse. A
10 police officer testified that while sitting in the back of a patrol car, Oliver “said that
he had never been to that place in his entire life, referring to the 220 Pooler Parkway
that he requested us to look up” and that “I’ve never been to the Logan’s
Steakhouse.” The State introduced a receipt showing that Oliver made a purchase at
Logan’s Roadhouse located at 220 Pooler Parkway on February 24, 2019, at 1:15
p.m.
The State charged Oliver with aggravated stalking of the mother and attempted
aggravated stalking of the daughter based on his conduct on February 24, 2019, “in
violation of a permanent protective order” and making a false statement to a police
officer when he denied having been to the restaurant. The State also gave notice of
its intent to seek recidivist sentencing. Following a trial, a jury found Oliver guilty
of all three counts after deliberating for 35 minutes. The trial court sentenced Oliver
to serve a total of 20 years as a recidivist under OCGA § 17-10-7 (a). It also barred
him from the First, Second, Eighth, and Tenth Judicial Districts of Georgia, which the
trial court characterized as “effectively south Georgia.” Finally, it imposed a special
condition of probation requiring Oliver to file a “Request to File” in the Clerk of
Court’s Office in the jurisdiction in which he intends to file, along with the document
he seeks to file and a copy of the special condition order. The trial court noted in its
11 sentencing order that it was “not enjoin[ing] Oliver from future filings, but instead
mandat[ing] as a condition on his sentence that Oliver observe certain conditions
before filing.”
1. Sufficiency of the Evidence. In related enumerations of error, Oliver contends
that insufficient evidence supports his convictions.
(a) Aggravated Stalking of the Mother. Oliver asserts that the State failed to
adequately prove aggravated stalking because the State failed to prove multiple
violations of the permanent protective order, a pattern of harassing and intimidating
behavior, contact with the mother, and venue. In Georgia,
[a] person commits the offense of aggravated stalking when such person, in violation of a . . . permanent protective order, . . . follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.
OCGA § 16-5-91 (a). See also State v. Burke, 287 Ga. 377, 378 (695 SE2d 649)
(2010).
(i) Pattern and Alleged Requirement for Multiple Violations of a Protective
Order. “The definition [of ‘harassing and intimidating’] contained in the simple
stalking statute [applies to aggravated stalking] because the legislature has made clear
12 that the simple stalking statute defines [the phrase] for purposes of the entire article
on stalking in the Georgia Code.” (Citation and punctuation omitted.) Burke, 287 Ga.
at 378. The phrase “harassing and intimidating” therefore means
a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose. This Code section shall not be construed to require an overt threat of death or bodily injury has been made.
OCGA § 16-5-90 (a) (1). Because a pattern of harassing and intimidating behavior
is required, “[a] single violation of a protective order, alone, simply does not establish
[the requisite] pattern [Cit.]” Burke, 287 Ga. at 379. But, “one act of violating a
protective order, when done as part of a pattern of harassing and intimidating
behavior, can constitute the crime of aggravated stalking.” (Citation omitted.) State
v. Cusack, 296 Ga. 534, 537-538 (769 SE2d 370) (2015). For example, in Louisyr v.
State, 307 Ga. App. 724 (706 SE2d 114) (2011), we explained that multiple violations
of a protective order are not required if the single violation of a protective order is
part of a pattern of harassing and intimidating behavior. Id. at 729 (1).
13 In determining whether a defendant has exhibited such a pattern of behavior, the jury can consider a number of factors, including the prior history between the parties, the defendant’s surreptitious conduct, as well as his overtly confrontational acts, and any attempts by the defendant to contact, communicate with, or control the victim indirectly, as through third parties.
(Citations omitted.) Id.
In this case, the State presented ample evidence of Oliver’s harassing and
intimidating behavior for over a decade, as well as evidence that the mother was in
reasonable fear for her safety based upon Oliver’s past conduct in actually causing
physical harm to the mother and threatening her with physical harm after he located
her in Georgia. Accordingly, the State presented sufficient evidence of a pattern of
harassing and intimidating behavior, and it was not necessary for it to prove multiple
violations of the permanent protective order. See Louisyr, 307 Ga. App. at 729 (1).
(ii) Contact. Oliver’s contention that the State failed to prove contact has no
merit. OCGA § 16-5-90 (a) (1) defines “contact” to include “any communication,”
and this Court has concluded that “[t]his definition is broad enough to include
intentionally sending a message to another person by telling a third party who would
be reasonably expected to convey the message to the victim.” Harvill v. State, 296
14 Ga. App. 453, 456 (1) (a) (674 SE2d 659) (2009). Oliver argues that the intended
recipient of his message was his daughter, not the mother, and that the friend and the
friend’s mother took it upon themselves to give the message to the mother rather than
the daughter. “The intention with which an act is done is peculiarly for the jury, and
the jury below obviously found that [Oliver] had the requisite intent [to contact the
mother].” (Citation and punctuation omitted.) Hollis v. State, 295 Ga. App. 529, 534
(4) (a) (672 SE2d 487) (2009). As the evidence would allow a rational trier of fact to
reach that conclusion, we find no merit in Oliver’s claim that the State failed to
sufficiently prove contact.
(iii) Venue. Oliver asserts that the State failed to prove venue in Chatham
County for his aggravated stalking conviction because the mother was located in
South Carolina when she talked on the telephone with her daughter’s friend about
what he had said at the restaurant. We agree.
“Georgia[‘s] Constitution requires that venue in all criminal cases must be laid
in the county in which the crime was allegedly committed.” Bowen v. State, 304 Ga.
App. 819, 822-823 (1) (b) (697 SE2d 898) (2010). “OCGA § 17-2-2 (a) gives effect
to this constitutional mandate by providing that ‘[c]riminal actions shall be tried in
the county where the crime was committed, except as otherwise provided by law.’”
15 State v. Kell, 276 Ga. 423, 425 (577 SE2d 551) (2003). Although the aggravated
stalking statute, OCGA § 16-5-91, does not contain a specific venue provision,
OCGA § 16-5-90, which defines stalking, contains the following provision relevant
to our analysis of venue in this case:
For the purpose of this article, . . . the term “contact” shall mean any communication including without being limited to communication in person, by telephone, . . . or by any other electronic device . . . and the place or places that contact by telephone, mail, broadcast, computer, computer network, or any other electronic device is deemed to occur shall be the place or places where such communication is received.
(Emphasis supplied.) OCGA § 16-5-90 (a) (1). As Georgia’s stalking offenses are
contained in Article 7, Chapter 5 of Title 16 in the Georgia Code, and the State
charged Oliver with committing aggravated stalking by “unlawfully contacting [the
mother,]” we must determine whether the language in OCGA § 16-5-90 (a) (1)
governs venue based on the facts presently before us. Cf. Burke, 287 Ga. at 378
(holding that legislature made it clear that definitions in simple stalking statute apply
to entire article on stalking).
An examination of the text of OCGA § 16-5-90 (a) (1) shows that the
communication “is deemed to occur” in the place where the communication is
16 received only when the contact is made “by telephone, mail, broadcast, computer,
computer network, or any other electronic device. . . .” This Court previously has
recognized that this language governs venue in aggravated stalking cases committed
through communication by telephone, Anderson v. Deas, 279 Ga. App. 892, 893 (632
SE2d 682) (2006) (“When a person commits the offense of stalking by placing a
harassing or intimidating telephone call to another person, the offense is deemed to
occur at the place where the communication is received.”), and we agree with that
conclusion.2 In this case, Oliver’s communication was made in person to a third party,
who in turn communicated the message to the mother by telephone. Thus, we must
decide whether venue is determined by Oliver’s communication to the third party in
person in Chatham County or the third party’s communication of Oliver’s message
to the mother by telephone when she was located in South Carolina.
Our Supreme Court has explained that “[s]tudying the key verbs which define
the criminal offense in the statute is helpful in determining venue in doubtful cases.”
(Citation and punctuation omitted.) Kell, 276 Ga. at 425.
2 To the extent our opinion in Fincher v. State, 363 Ga. App. 439, 450-452 (6) (870 SE2d 833) (2022), stands for the proposition that venue for aggravated stalking can lie in the county in which the telephone call was initiated, it is disapproved.
17 While the “verb test” certainly has value as an interpretative tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language[,] . . . [which] must be considered in determining the scope of the prohibition imposed by [the criminal statute] and, consequently, the location of permissible venues for a prosecution under that statute.
(Citation and punctuation omitted.) State v. Mayze, 280 Ga. 5, 6-7 (622 SE2d 836)
(2005). The key verb in OCGA § 16-5-91 (a) relevant to this case is “contacts,” which
is further defined in OCGA § 16-5-90 (a) (1) as “any communication.” And this
communication must be with “another person . . . without the consent of the other
person for the purpose of harassing and intimidating the other person.” OCGA § 16-
5-90 (a) (1). Since the “person” alleged in the indictment was the mother, the crime
was not complete until she received Oliver’s message by telephone in South Carolina
from the third party. See Seibert v. State, 321 Ga. App. 243, 245 (739 SE2d 91)
(2013) (evidence insufficient to support aggravated stalking conviction where
intended victim never received letter given to third party by defendant). As the
evidence showed that the mother learned about and received Oliver’s communication
by telephone while she was in South Carolina, the State presented insufficient
evidence of venue in Chatham County, and we must therefore reverse his conviction.
In so holding, we note that when “a criminal conviction is reversed because of an
18 evidentiary insufficiency concerning the procedural propriety of laying venue within
a particular forum, and not because of an evidentiary insufficiency concerning the
accused’s guilt, retrial is not barred by the Double Jeopardy Clause.” (Citation and
punctuation omitted.) Lee v. State, 305 Ga. App. 214, 216 (2) (d) (699 SE2d 389)
(b) Attempted Aggravated Stalking of the Daughter. Oliver contends that
insufficient evidence supports his attempted aggravated stalking conviction because
the mother “actually relayed” his message to their daughter and it therefore should not
be considered “an attempt” crime. He also points out that the indictment listed the
mother’s last name for his daughter rather than his own, which he alleges to be her
legal last name. In his view, he cannot be guilty of attempting to stalk a person that
does not exist. Finally, he asserts that the State was required to prove all of the
elements of aggravated stalking to prove attempt and that a single violation of a
protective order could not support his attempt conviction. We find no merit in these
arguments.3
3 While Oliver also asserted generally that “[t]he venue and jurisdiction of this case was in South Carolina, not in Chatham County, Georgia,” his argument and citation of authorities go solely to his aggravated stalking conviction. He therefore has abandoned any such claim with regard to his attempt and false statement convictions. See Court of Appeals Rule 25 (a) (3), (c) (2).” Gayton v. State, 361 Ga.
19 (i) Delivery of the Message. The mother’s subsequent conduct in relaying the
content of Oliver’s message to their daughter has no effect on the sufficiency of
Oliver’s attempted aggravated stalking of his daughter. See Scott v. State, 309 Ga.
764, 767 (2) (848 SE2d 448) (2020) (“[A] person may be convicted of the offense of
criminal attempt if the crime attempted was actually committed in pursuance of the
attempt. . . .”) (citation and punctuation omitted).
(ii) Misnomer. We find no merit in Oliver’s contention that the misnomer in the
indictment renders the evidence against him insufficient. A “misnomer of the victim
in the indictment is not a fatal error. A variance between the victim’s name as alleged
in the indictment and as proven at trial is not fatal if the two names in fact refer to the
same individual. . . .” (Citation and punctuation omitted.) Parks v. State, 246 Ga.
App. 888, 889 (1) (543 SE2d 39) (2000).
(iii) Elements of Underlying Crime. Oliver’s contention that the State had to
prove all of the elements of aggravated stalking to establish attempted aggravated
stalking is incorrect. “Criminal attempt is accomplished ‘when, with intent to commit
a specific crime, a person performs any act which constitutes a substantial step toward
App. 809, 818-819 (2) (865 SE2d 628) (2021). See also Jackson v. State, 309 Ga. App. 796, 801 (5) (714 SE2d 584) (2011).
20 the commission of that crime.’ OCGA § 16-4-1.” (Punctuation omitted.) McIntyre v.
State, 312 Ga. 531, 534 (1) (863 SE2d 166) (2021). Requiring the State to prove all
of the elements of an underlying crime “would eviscerate the purpose of delineating
attempt as an offense.” Davis v. State, 281 Ga. App. 855, 859 (2), n.11 (637 SE2d
431) (2006). Accordingly, Oliver’s argument that insufficient evidence supports his
attempt conviction because the State allegedly proved only a single violation of a
protective order has no merit.
(c) Making a False Statement. In a bolded heading, Oliver contends that the
State “failed to prove all essential elements of . . . [m]aking a false statement,” but
offers no argument or citation of authority in support of this contention. “Because
[Oliver] failed to support this enumeration with argument, the enumeration is deemed
abandoned. See Court of Appeals Rule 25 (a) (3), (c) (2).” Gayton v. State, 361 Ga.
App. 809, 818-819 (2) (865 SE2d 628) (2021). See also Jackson v. State, 309 Ga.
App. 796, 800-801 (5) (714 SE2d 584) (2011).
2. Admission of Other Act Evidence. Oliver contends that the trial court erred
by allowing evidence of lawsuits filed by him in which the mother was not named as
a defendant. Following a hearing, the trial court admitted this evidence based on its
conclusion that the lawsuits “document a pattern of frivolous and vexatious litigation
21 ostensibly directed at harassing and intimidating the other litigants” and are “highly
probative (Rule 403) on the question of intent.” Even if we assume, without deciding,
that this evidence should not have been admitted, we conclude “that the State
introduced strong independent evidence of [Oliver]’s guilt such that any error in
admitting . . . the other act[ ] evidence was harmless.” Fincher v. State, 363 Ga. App.
429, 446 (2) (870 SE2d 833) (2022).
The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict. In doing so, we weigh the evidence as we would expect reasonable jurors to have done so, as opposed to assuming that they took the most pro-guilt possible view of every bit of evidence in the case.
(Citation and punctuation omitted.) Id. at 445 (2). In this case, “we have no difficulty
concluding that it is highly probable that any error . . . did not contribute to the jury’s
guilty verdict in this trial.” (Citation, punctuation and footnote omitted.) Boothe v.
State, 293 Ga. 285, 289-290 (2) (b) (745 SE2d 594) (2013).
3. Change of Venue. We find no merit in Oliver’s contention that the trial court
erred by failing to rule on his motion to change venue. As the trial court pointed out
in the motion for new trial hearing, it held a hearing before Oliver’s trial and denied
the motion. At the end of his argument regarding the trial court’s alleged failure to
22 rule on his motion to change venue, Oliver cryptically states: “The trial court also
denied the Appellant an opportunity to conduct a voir dire.” To the extent that Oliver
is asserting a separate claim of error in this sentence, we find that he has failed to
support it with citation to the record and argument. See Court of Appeals Rule 25 (a)
(3), (c) (2).
4. Ineffective Assistance of Counsel. Oliver contends that he received
ineffective assistance of counsel in numerous ways, which we will address in more
detail below.4
To prevail on a claim of ineffective assistance of counsel, [Oliver] must show that trial counsel’s performance was so deficient that it fell below an objective standard of reasonableness, and that counsel’s deficient performance prejudiced the defense such that a reasonable probability exists that the trial results would have been different but for counsel’s performance. Strickland v. Washington, 466 U. S. 668 (II) (104 SCt 2052, 80 LE2d 674) (1984).
Bragg v. State, 295 Ga. 676, 678 (4) (763 SE2d 476) (2014). “Trial tactics and
strategy, no matter how mistaken in hindsight, are almost never adequate grounds for
4 We note that while Oliver filed a pro se amended motion for new trial raising various grounds of ineffective assistance of counsel for the first time while he was still represented by counsel, he later re-alleged these arguments after the trial court approved counsel’s withdrawal and allowed Oliver to represent himself.
23 finding trial counsel ineffective unless they are so patently unreasonable that no
competent attorney would have chosen them.” (Citation and punctuation omitted.)
Brown v. State, 321 Ga. App. 765, 767 (1) (743 SE2d 452) (2013).
(a) Directed Verdict. Oliver argues he received ineffective assistance of
counsel based upon trial counsel’s alleged failure to seek a directed verdict or “argue”
the sufficiency grounds Oliver raises on appeal with regard to aggravated stalking and
attempt. As the trial court correctly found in its order, trial counsel moved for a
directed verdict at the close of the State’s case. Moreover, based on our holdings in
Division 1, Oliver’s arguments “‘present[ ] an insufficient ground as a matter of law
for claiming ineffective assistance of counsel,’ [Cit.]” Jones v. State, 278 Ga. 880
(608 SE2d 229) (2005), or are moot. Johnson v. State, 214 Ga. App. 77, 81 (2) (447
SE2d 74) (1994).
(b) General Trial Performance and Preparation. Oliver maintains that his trial
counsel failed “to properly cross[-]examine all witnesses” with matters Oliver
believes should have been raised, as well as having no “opening or closing argument
whatsoever[,]” and no “defense theory whatsoever[.]”
After reviewing Oliver’s briefs, the trial transcript and exhibits, counsel’s
testimony in the motion for new trial hearing, the trial court’s order, the record, and
24 relevant law, we find that Oliver has failed to satisfy his burden of establishing
ineffective assistance of counsel on these grounds. “[D]ecisions about what questions
to ask on cross-examination are quintessential trial strategy and will rarely constitute
ineffective assistance of counsel.” (Citation and punctuation omitted.) Edwards v.
State, 299 Ga. 20, 24 (2) (785 SE2d 869) (2016). With regard to counsel’s alleged
deficiencies in his opening, closing, and defense theories, “[Oliver] has not overcome
the strong presumption that trial counsel’s performance was reasonable and that
counsel’s decisions and choices at trial fell within the broad range of professional
conduct as assessed from counsel’s perspective at the time of trial and under the
specific circumstances of the case.” (Citation and punctuation omitted.) Harris v.
State, 345 Ga. App. 80, 81-82 (1) (a), (b) (812 SE2d 342) (2018) (rejecting ineffective
assistance of counsel claim premised upon counsel’s “short” opening and closing
argument that did not explain basic principles of law). Finally, the trial court properly
concluded in its order denying Oliver’s motion for new trial, “trial counsel presented
a sensible defense theory.”
(c) Failure to Make Motions. Oliver contends that counsel was ineffective for
failing to renew his motion for a change of venue, as well as failing to make a motion
25 in limine, for mistrial, and to suppress a search warrant. We find no merit in these
contentions.
(i) Change of Venue. Oliver claims that trial counsel “was ineffective for failing
to renew the very Motion he filed to begin with[,]” but makes no argument as to when
counsel should have renewed the motion, and it is difficult for this Court to discern
from his brief what additional grounds Oliver contends that counsel should have
raised.
To prevail on a motion for change of venue . . . , a defendant must show either that the setting of the trial was inherently prejudicial or that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. The record contains no evidence which would support a change of venue on either of the above grounds, and appellant can but speculate, based on contents of the record, that the trial court would have granted a change of venue had the motion been renewed. The filing of frivolous motions is not condoned, let alone required of competent counsel. It is not deficient to fail to file a frivolous motion.
(Citation and punctuation omitted.) White v. State, 221 Ga. App. 860, 864 (3) (473
SE2d 539) (1996). Accordingly, we find no merit in this ground of ineffective
assistance.
26 (ii) Military Evidence and Testimony. Oliver contends that trial counsel should
have moved in limine to prevent the State from presenting the testimony of a United
States Secret Service agent about photographs found in a forensic examination of
Oliver’s electronic devices, which had been seized pursuant to a search warrant.
Oliver asserts the agent should not have been allowed to testify about “military
photos, uniforms, or that [Oliver] never served in the United States military.” He
contends that he was “convicted of character assassination,” and contends, without
citation to any evidence in the record, at the time the trial court ruled on his motion
for new trial, that “four (4) active, retired, or reserve service members” sat on the jury
in his trial. Even assuming that the agent’s testimony could have been excluded, we
find that Oliver has not shown that the exclusion of the testimony and photographs
would have changed the result of his trial. The “military” evidence “was of negligible
importance, and the other evidence of [Oliver]’s guilt was compelling.” Carter v.
State, 310 Ga. 559, 564 (2) (a) (852 SE2d 542) (2020). For the same reason, Oliver
cannot meet his burden of proving ineffective assistance as a result of counsel’s
failure to seek a mistrial based upon admission of the military evidence.
27 (iii) Motion to Suppress Search Warrant. Oliver contends that counsel should
have moved to suppress evidence5 obtained pursuant to a search warrant because the
warrant was “issued without probable cause,” was obtained by deception, and did not
authorize evidence to be forensically examined by the United States Secret Service.
“[W]hen trial counsel’s failure to file a motion to suppress is the basis for a claim of
ineffective assistance, the defendant must make a strong showing that the damaging
evidence would have been suppressed had counsel made the motion.” (Citation and
punctuation omitted.) Young v. State, 309 Ga. 529, 539 (4) (847 SE2d 347) (2020).
Trial counsel testified that he did not file a motion to suppress because there was not
grounds to do so. We agree with counsel’s assessment.
The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or
5 It is difficult to discern from Oliver’s brief exactly what evidence he contends should have been suppressed. The only evidence specifically referenced in Oliver’s brief is the Secret Service agent’s testimony about his forensic examination of Oliver’s computers. According to Oliver, the agent’s search “found pictures of [Oliver] wearing paint ball fatigues [and] Marine insignia.” He also asserts that the agent’s testimony “provided in flaming (sic) . . . and bolster[ing] testimony that [Oliver] was never in the military.”
28 evidence of a crime will be found in a particular place. . . . The test for probable cause is not a hypertechnical one to be employed by legal technicians, but is based on the factual and practical considerations of everyday life on which reasonable and prudent men act. Moreover, even doubtful cases should be resolved in favor of upholding a warrant.
(Citation and punctuation omitted.) Taylor v. State, 303 Ga. 57, 60-61 (2) (810 SE2d
113) (2018). Additionally, “in making the probable cause determination, a magistrate
may draw ‘reasonable inferences’ from the material supplied to him by applicants for
a warrant.” (Citations and punctuation omitted.) Id. at 61 (2). Oliver’s brief contains
only bare allegations regarding the lack of probable cause, and our review of the
search warrant application and affidavit shows that the warrant was amply supported
by probable cause.
With regard to alleged “judicial deception” in obtaining the warrant, “[i]f a
court determines that an affidavit contains material false representations or omissions,
the false statements must be deleted, the omitted truthful material must be included,
and the affidavit must be reexamined to determine whether probable cause exists to
issue a warrant.” (Citation and footnote omitted.) Moss v. State, 275 Ga. 96, 102-103
(13) (561 SE2d 382) (2002). As Oliver fails to identify a specific material false
representation or omission in the supporting affidavit, we cannot determine whether
29 probable cause would have existed in the absence of any such representation or
omission. Accordingly, he cannot meet his burden of showing that a motion to
suppress would have been granted.
Finally, we find no merit in Oliver’s contention that a motion to suppress
should have been filed and granted because the search warrant did not authorize a
Secret Service agent to conduct a forensic examination of the evidence seized. The
warrant expressly authorized a search of the contents of his electronic devices, and
the fact that the warrant was addressed to “All Peace Officers of the State of Georgia”
does not preclude forensic examination by a person who is not a Georgia peace
officer. Cf. United States v. Gargotto, 476 F2d 1009, 1014 (6th Cir. 1973) (“Evidence
legally obtained by one police agency may be made available to other such agencies
without a warrant, even for a use different from that which it was originally taken.”);
State v. Motley, 153 N.C. App. 701, 707 (571 SE2d 269) (NC 2002) (transfer of
evidence from one law enforcement agency to another does not constitute an illegal
search and seizure).
(d) Alleged Bolstering. Oliver asserts that trial counsel should have objected
when a district attorney’s office investigator testified that Oliver had never served in
30 the military. In Oliver’s view, this testimony “bolstered” the testimony of the Secret
Service agent’s testimony to the same effect. We disagree.
“It is erroneous for a witness, even an expert, to bolster the credibility of
another witness by expressing an opinion that the witness is telling the truth. What
is forbidden is opinion testimony that directly addresses the credibility of the victim,
i.e., ‘I believe the victim; I think the victim is telling the truth.’” (Citations and
punctuation omitted.) Wright v. State, 327 Ga. App. 658, 661 (2) (a) (760 SE2d 661)
(2014). As the investigator’s testimony did not address the credibility of the Secret
Service agent, trial counsel was not ineffective for failing to make a meritless
bolstering objection. Id. at 661-662 (2) (a).
(e) Specific Cross-Examination Questions Posed by Counsel. Oliver contends
that counsel performed defectively by asking the investigator how she verified
Oliver’s lack of military service because “he sought to remind the jury in case they
missed it the first time” that Oliver had never served in the military. He also
complains that trial counsel “opened the door by asking the State’s investigator about
[Oliver] running for Mayor of Savannah . . . [i]nstead of focusing on [his] innocence.”
As we have previously explained in Division (4) (b), decisions about what questions
31 to ask on cross-examination rarely constitute ineffective assistance of counsel, and
such is the case here. See Edwards, 299 Ga. at 24 (2).
5. Merger. Based on our holding in Division 1 (a) (iii), Oliver’s contention that
the trial court should have merged his aggravated stalking and attempted aggravated
stalking convictions is moot.
6. Recidivist Sentence. Oliver argues that the trial court erred by sentencing him
as a recidivist under OCGA § 17-10-7 (a), based upon two convictions in California
because the State failed to adequately prove the existence of these convictions or that
either would have been felonies under Georgia law. In a related enumeration of error,
he asserts that he received ineffective assistance of counsel based on his counsel’s
failure to prepare for the penalty phase and object at sentencing to the introduction
of the prior convictions because they do not exist in his “GCIC” and are not felonies
under Georgia law.
OCGA § 17-10-7 (a) provides, in pertinent part:
[A]ny person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, commits a felony punishable by confinement in a penal institution shall
32 be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.
In order to determine whether the California convictions could be used to sentence
Oliver as a recidivist under OCGA § 17-10-7 (a), we must
first identify the [California] crime used to enhance [Oliver’s] sentence . . . , consider whether the crime is divisible, and then parse the crime’s elements using the “formal categorical” or “modified categorical” approach. For guidance in this process, we look to the relevant [California] statutes and case law. After establishing the elements of the [California] predicate conviction, we determine whether those elements would describe a felony under Georgia law.
(Footnote omitted.) Nordahl v. State, 306 Ga. 15, 24 (4) (829 SE2d 99) (2019).
In this case, the State alleged in the indictment that Oliver was a “recidivist”
with prior convictions in California for “Assault with a Deadly Weapon on a Peace
Officer” in 2009 and “Making a Criminal Threat” in 2012. It also provided a “Notice
of Recidivist Prosecution” which identified the same convictions, as well as an
additional California conviction for “Driving Under Influence Causing Injury.” In the
sentencing hearing, the State presented certified copies of numerous prior convictions
33 in California, only two of which were admitted for the purpose of supporting a
recidivist sentence (assault with a deadly weapon on a peace officer or a firefighter
and driving under the influence causing injury). Oliver’s counsel objected to other
convictions being used for recidivist purposes, and the trial court agreed to use them
only for aggravation. He raised no objection to Oliver being sentenced as a recidivist.
Even if we assume, without deciding, that the issues raised by Oliver on appeal
for the first time are not waived, Marshall v. State, 309 Ga. 698, 704 (3), n.9 (848
SE2d 389) (2020), they have no merit. The State presented certified copies of Oliver’s
previous convictions, and a comparison of the California offense of assault with a
deadly weapon upon a peace officer, Cal. Penal Code § 245 (c), with the Georgia
offense of aggravated assault upon a public safety officer, OCGA § 16-5-21 (c), under
the appropriate test shows that the California statute describes a felony under Georgia
law.6 Oliver’s related ineffective assistance of counsel claim fails because any
objection to recidivist sentencing would have been meritless. See Anderson v. State,
337 Ga. App. 739, 747 (3) (a) (788 SE2d 831) (2016), disapproved on other grounds,
Nordahl, 306 Ga. at 19-20 (1), n.8.
6 As it only requires one prior felony conviction to be sentenced as a recidivist under OCGA § 17-10-7 (a), we need not analyze whether Oliver’s other California conviction would be considered a felony in Georgia.
34 7. Lenity. Oliver asserts that the trial court erred by failing to apply the rule of
lenity to reduce his felony conviction for making a false statement, in violation of
OCGA § 16-10-20, to “obstruction of justice,” in violation of OCGA § 16-10-24 (a).7
We disagree.
“The rule of lenity applies when a statute, or statutes, establishes, or establish,
different punishments for the same offense, and provides that the ambiguity is
resolved in favor of the defendant, who will then receive the lesser punishment.
However, the rule does not apply when the statutory provisions are unambiguous.”
(Citations and punctuation omitted.) McNair v. State, 293 Ga. 282, 283-284 (745
SE2d 646) (2013). In Banta v. State, 281 Ga. 615 (642 SE2d 51) (2007), the Supreme
Court of Georgia rejected the argument that the rule of lenity applies to reduce the
felony of making a false statement to misdemeanor obstruction of a police officer
because “[s]imply put, the two statutes do not define the same offense” and “are
unambiguous.” Id. at 617-618 (2).
8. Special Condition of Probation Regarding Court Filings. Oliver contends
that the trial court erred by entering a “bill of peace” against him without notice and
7 While Oliver cites no statute for the crime of “obstruction of justice,” the only conceivable statute to which he could refer is OCGA § 16-10-24 (a) (obstruction or hindering a law enforcement officer).
35 in violation of a four-prong test outlined by the Ninth Circuit Court of Appeals in De
Long v. Hennessey, 912 F2d 1144, 1147-1148 (II) (9th Cir. 1990), and his federal due
process rights under the Fourteenth Amendment of the Constitution of the United
States. Contrary to Oliver’s contention, this Court is not required to follow a federal
court decision from the Ninth Circuit. Bowers v. State, 151 Ga. App. 46, 49 (258
SE2d 623) (1979).8 Additionally, the special condition was not a “bill of peace”
injunction entered pursuant to OCGA § 23-3-110.9 Instead, it was a special condition
of probation announced by the trial court during the sentencing hearing and imposed
in writing at the time Oliver’s sentence was entered.
A trial judge has broad discretion in imposing conditions of probation, and in the absence of express authority to the contrary, there is no reason why any reasonable condition of probation should not be approved. Furthermore, there is a presumption that a sentence was
8 The United States District Court for the Southern District of Georgia advised Oliver that the De Long case was not binding in that court before he filed his brief in this case. See Oliver v. Ameris Bank, No. 4:20-CV-273, 2021 U.S. Dist. LEXIS 150147, at *4 (S.D. Ga. August 10, 2021). 9 This Code section authorizes a superior court to confirm an established right “[t]o avoid a multiplicity of actions” and grant a “perpetual injunction[ ].” OCGA § 23-3-110. See generally Rolleston Living Trust v. Kennedy, 277 Ga. 541 (591 SE2d 834) (2004).
36 correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety.
(Citation and punctuation omitted.) Morgan v. State, 285 Ga. App. 254, 260 (2) (645
SE2d 745) (2007). See also Walker v. Brown, 281 Ga. 468, 469-470 (1) (639 SE2d
470) (2007). Based upon the lack of express authority to the contrary and the
reasonableness of the condition imposed by the trial court, we find no merit in
Oliver’s claimed error in connection with the special condition of his probation.
Judgment affirmed in part, and reversed in part. Barnes, P. J., concurs.
Hodges, J., concurs fully and specially. A22A0254. OLIVER v. THE STATE.
HODGES, Judge, fully and specially concurring.
I am constrained to fully concur with the majority opinion, but I write
separately to highlight the challenges caused by the venue provision of OCGA § 16-
5-90 and to suggest that our General Assembly revisit this law in light of
technological advancements since the time of its last amendment.
As the majority correctly states, OCGA § 16-5-90 (a) (1) provides that “the
place or places that contact by telephone, mail, broadcast, computer, computer
network, or any other electronic device is deemed to occur shall be the place or places
where such communication is received.” This is a departure from the general rule
that, for telephone based crimes, “venue can be either the location from which the call
2 originated or the place at which the call is received.” Reeves v. State, 346 Ga. App.
414 (1) (a) (816 SE2d 401) (2018). OCGA § 16-5-90 was last amended in 2000, and
since then the proliferation of computers and cellular phones has vastly changed the
way people communicate with each other. There seems to be no logical reason to
impose a more narrow rule for venue for a crime such as stalking, which unlike many
other crimes, could often involve a victim and a perpetrator being in different
counties from each other during the commission of the crime. I encourage the General
Assembly to consider adopting a rule for stalking-based crimes which would permit
venue in either the place where the communication originated or where it is received.